Ford v. Tinker Air Force Base et al
Filing
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ORDER granting 33 Defendant Secretary's Motion for Summary Judgment; stricken as moot 52 Motion in Limine;. Signed by Honorable Robin J. Cauthron on 7/27/11. (lg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRISTOPHER F. FORD,
Plaintiff,
vs.
MICHAEL B. DONLEY, Secretary of
the United States Dep’t of the Air Force,
Defendant.
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Case No. CIV-10-181-C
MEMORANDUM OPINION AND ORDER
Plaintiff Christopher F. Ford (“Ford”) brought suit against Defendant Michael B.
Donley, Secretary of the United States Department of the Air Force, (“Secretary”), claiming
race, national origin, and gender discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981, seeking compensatory and punitive
damages. Defendant filed the present Motion for Summary Judgment arguing that Plaintiff’s
claims fail as a matter of law.
I. BACKGROUND
Plaintiff Ford, a black male, worked as a sheet metal mechanic for Defendant Tinker
Air Force Base, where he claims he was subjected to a hostile work environment and
discriminated against during his employment. In 2003, Plaintiff received a settlement for a
claim with the U.S. Equal Employment Opportunity Commission (“EEOC”) previously filed
against Defendant, which he alleges also included promotion to the next WG-3806-11 (“WG11”) position. (Pl.’s Br., Dkt. No. 36, at 5.) Plaintiff was in fact promoted to a temporary
WG-11 position, which he held for over a year without incident.
In November of 2007, Plaintiff, along with thirteen other candidates, applied for an
opening as a sheet metal mechanic, a WG-11 position—all applicants were white, except
Plaintiff. These applications were referred to the selecting official, Bobby Joe Burleson, a
white male. While making this selection, Burleson used a matrix established by the Air
Force which rates years of relevant experience among other factors. Plaintiff alleges that
Burleson used this matrix in a subjective manner to effectuate his discriminatory intent.
Specifically, Plaintiff claims that his experience for numerous years as a sheet metal
mechanic was improperly evaluated.
Because Plaintiff felt he was the subject of discrimination during this process, he filed
another EEO claim for failure to promote on April 15, 2008. (Def.’s Br., Dkt. No. 33 Ex. 1.)
Thereafter, Plaintiff alleges that he was subjected to a hostile work environment due to his
race, prior filings, and mental health for which he filed another EEO claim on May 12, 2009.
(Id. Ex. 5.) Specifically, Plaintiff alleges that several co-workers walked through his
workspace, bent over, and looked at him strangely. (Id. Ex. 5, at 4-5.) Plaintiff also asserts
several incidents of harassment against a specific co-worker, Nate Calhoun, who Plaintiff
alleges called him a “nigger” during an argument between the two on February 18, 2009. (Id.
Ex. 5, at 6-8.) Plaintiff claims that the next day, his first-level supervisor, Kevin Yates, took
no action against Calhoun, who continued to harass Plaintiff by changing the station on
Plaintiff’s radio, watching Plaintiff, and walking through Plaintiff’s workspace. (Id.) Both
men were sent to counseling as a result of this argument. Additionally, Plaintiff claims that
he was denied overtime and his request for stress leave due to discrimination or reprisal.
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Finally, in September of 2009, Plaintiff applied for medical retirement but was denied in
March of 2010. (Id. Ex. 7.)
II. STANDARD OF REVIEW
Summary judgment is proper if the moving party shows that there is “no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Under the summary judgment standard, a mere factual dispute will
not preclude summary judgment; instead there must be a genuine issue of material fact.”
Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). The party seeking summary
judgment bears the initial burden of demonstrating the basis for its motion, and identifying
those portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,’” that demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citation omitted). A fact
is material if it affects the disposition of the substantive claim. Anderson v. Liberty Lobby,
Inc., 477 U.S. 247 (1986). A court considering a summary judgment motion must view the
evidence and draw all reasonable inferences therefrom in the light most favorable to the
nonmoving party. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir.
2000).
If a party does not sufficiently support its own asserted facts or address the other
party’s asserted fact, a court may allow “opportunity to properly support or address the
fact . . . consider the fact undisputed for purposes of the motion . . . grant summary judgment
if the motion and supporting materials—including the facts considered undisputed—show
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that the movant is entitled to it . . . or issue any other appropriate order.” Fed. R. Civ. P.
56(e).
III. DISCUSSION
A. Exhaustion
Under Title VII, a plaintiff must exhaust administrative remedies prior to initiating a
discrimination suit. The pertinent regulation requires federal employee plaintiffs to initiate
contact with an EEO counselor “within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days of the effective date of the
action.” 29 C.F.R. § 1614.105(a)(1). See Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th
Cir. 2003) (affirming dismissal of retaliation claim pursuant to Title VII for lack of
jurisdiction based on failure to exhaust administrative remedies). The purpose of this
requirement is to facilitate informal resolutions of discriminatory allegations with the
counselor. If it is not resolved at this stage, however, the counselor must inform the
employee of his right to file a discrimination complaint. 29 C.F.R. § 1614.105(d). Once a
final action occurs, the employee has the right to appeal. Id. § 1614.106(e)(1).
A plaintiff must satisfy these requirements as to each discrete incident of alleged
wrongful employment practice. Potter, 347 F.3d at 1210. Administrative exhaustion is a
subject matter jurisdictional prerequisite to suing under Title VII, “not merely a condition
precedent to suit.” Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir.
2005); Jones v. Runyon, 91 F.3d 1398, 1399 n.1 (10th Cir. 1996). “[B]ecause failure to
exhaust administrative remedies is a bar to subject matter jurisdiction, the burden is on the
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plaintiff as the party seeking federal jurisdiction to show, by competent evidence, that she
did exhaust.” McBride v. CITGO Petroleum Corp., 281 F.3d 1099, 1106 (10th Cir. 2002).
Once it is shown that a plaintiff has filed the required charge, the issue of whether that charge
was timely filed becomes an affirmative defense rather than a jurisdictional bar. Zipes v.
Trans World Airlines, Inc., 455 U.S. 385, 393 (1982). Accordingly, when the issue is
whether the plaintiff timely filed a charge with the EEOC, the burden is on the defendant to
show that the charge was not filed timely.
Here, Plaintiff filed a charge of discrimination on April 15, 2008, and received a right
to sue letter from the EEOC on December 14, 2009. On May 12, 2009, Plaintiff filed another
charge of discrimination and received another right to sue letter from the EEOC on October
8. In the latter, Plaintiff alleged that multiple incidents in his workplace led to a hostile work
environment where he was subjected to discrimination for his race, disability, namely his
mental health, and reprisal for his prior EEO charges. As support for this charge, Plaintiff
cited thirteen incidents he felt were discriminatory, which included denial of his requested
stress leave, prohibition of overtime, and denial of his medical retirement package.
Defendant claims that Plaintiff has fully exhausted his administrative remedies
regarding race and reprisal discrimination as the basis for his failure to promote claim and
the thirteen allegations of hostile work environment from October 12, 2008, to September
2009. All other allegations, Defendant argues, were not raised in Plaintiff’s EEO complaints
and, therefore, this Court lacks the requisite subject matter jurisdiction to decide them.
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Plaintiff counters that any failure to raise issues in the pleadings may nonetheless be
tried by the parties’ express or implied consent to do so under Rule 15 of the Federal Rules
of Civil Procedure. Additionally, Plaintiff argues that the agency had ample time to fully
investigate Plaintiff’s claims, Defendant knew of Plaintiff’s mental health issues, and that an
interview of any supervisor or employee would have uncovered such knowledge. Citing
Jones v. United Parcel Service, Inc., 502 F.3d 1176 (10th Cir. 2007), Plaintiff argues that
because the agency likely uncovered information regarding Plaintiff’s mental health issues,
the exhaustive requirement is met. However, in Jones, the Tenth Circuit emphasized that the
charge “must contain facts concerning the discriminatory and retaliatory actions underlying
each claim.” Id. at 1186.
Here, Plaintiff alleges discriminatory actions regarding his race and reprisal for
previously filing EEO claims and a claim of hostile work environment based on his mental
health, prior filings, and race. Plaintiff’s claim of forced medical retirement is discussed in
the later final agency decision as are Plaintiff’s claims of disability discrimination and
disparate treatment. Therefore, these issues are not beyond the scope of the administrative
investigation. Accordingly, those claims discussed in the final agency decisions—such as
Plaintiff’s hostile work environment, reprisal, and failure to promote claims—satisfy the
exhaustion requirement and will now be addressed.
B. Plaintiff’s Claims
When a plaintiff does not have direct evidence of discrimination, courts utilize the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
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(1973). Under this framework, the plaintiff must first establish a prima facie case of
unlawful discrimination. “The critical prima facie inquiry in all cases is whether the plaintiff
has demonstrated that the adverse employment action occurred ‘under circumstances which
give rise to an inference of unlawful discrimination.’” Kendrick, 220 F.3d at 1227 (quoting
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981)); Adamson v. Multi
Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008) (describing the prima
facie elements of discrimination as “neither rigid nor mechanistic”); Barone v. United
Airlines, Inc., 355 F. App’x 169, 180 (10th Cir. 2009) (“We emphasize that the burden of
establishing a prima facie case is ‘not onerous.’”).
Once the plaintiff has established the prima facie case, the burden shifts to the
employer to establish legitimate, nondiscriminatory reasons for the action taken. If the
employer satisfies this standard, then the burden shifts back to the plaintiff to prove by a
preponderance of the evidence that the employer’s reasons are a pretext for unlawful
discrimination. Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010).
Pretext is established by showing “‘such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action
that a reasonable factfinder could rationally find them unworthy of credence and hence infer
that the employer did not act for the asserted non-discriminatory reasons.” Jones v. Okla.
City Pub. Sch., 617 F.3d 1273, 1280 (10th Cir. 2010) (quoting Jaramillo v. Colo. Judicial
Dep’t, 427 F.3d 1303, 1308 (10th Cir. 2005)).
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It is not the courts’ role to determine whether an employer’s decision was “‘wise, fair
or correct, but whether [it] honestly believed [the legitimate, nondiscriminatory] reasons
[given] and acted in good faith upon those beliefs.’” Rivera v. City & Cnty. of Denver, 365
F.3d 912, 925 (10th Cir. 2004) (first alteration in original) (quoting Bullington v. United Air
Lines, Inc., 186 F.3d 1301, 1318 (10th Cir. 1999), overruled on other grounds by Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101 (2002)).
1. Failure to Promote
To establish a prima facie case of discrimination resulting in a failure to promote, a
plaintiff must show four elements: (1) that he was a member of a protected class; (2) that he
sought and was qualified for a position; (3) that he did not receive the position; and (4) that
the position remained open or was filled with a nonminority. MacKenzie v. City & Cnty. of
Denver, 414 F.3d 1266, 1278 (10th Cir. 2005); Amro v. Boeing Co., 232 F.3d 790, 796-97
(10th Cir. 2000). The Court finds that Plaintiff has sufficiently established the prima facie
case to carry forward with the burden-shifting analysis.
In rebuttal to this burden-shifting, Defendant points to the matrix used by the Air
Force Department as evidence of the higher qualifications of the person selected compared
to Plaintiff and the nondiscriminatory reason for not promoting Plaintiff. (Def.’s Br., Dkt.
No. 33 Ex. 5.) Pursuant to this matrix, applicants are given points under various categories,
such as workload experience, which are added up to a final score. (Id.) The person hired for
this position, Joseph Harder, received a total of 47 points and was the applicant with the
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highest score; Plaintiff received a total of 24.5 points and ranked eleventh among the fourteen
applicants.
Plaintiff claims that he would have received higher points from application of the
matrix had Burleson not subjectively used the matrix to prevent him from achieving the
points he believed he was owed. Specifically, Plaintiff disputes the 2.5 years he received for
“Workload Experience,” which he believes should have been 10 points. Additionally,
Plaintiff points to testimony of Kevin Yates, a supervisor, that Burleson improperly measured
Plaintiff’s experience under the matrix. Unfortunately, Plaintiff conflates two separate
categories under the matrix: the “Workload Experience” and the “Experience in this Job
Series.”
“Workload Experience” measures the length of time an employee is in a specific shop,
while “Experience in this Job Series” measures the length of time an employee is performing
a specific function, such as welding or working with sheet metal. (Def.’s Br., Dkt. No. 42 Ex
3, at 42-43 & Ex. 6, at 44-46.) Plaintiff has 15 years’ experience in the 3806 series, but only
worked for one year in the boom shop, the shop where the opening arose. Therefore,
Plaintiff received 2.5 points for his time spent in the boom shop under the heading
“Workload Experience,” which provides 2.5 points per year, and 7 points for his 15 years
worth of experience as metal sheet mechanic under the heading “Experience in this Job
Series,” which provides 1 point per year up to 7 years.
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Plaintiff’s assertion that Burleson improperly allocated only 2.5 points to Plaintiff
under the matrix for his 15 plus years of experience as sheet metal mechanic is incorrect.*
Plaintiff’s belief that his employer “got it wrong” is not enough “to suggest that something
more nefarious might be at play.” Johnson, 594 F.3d at 1211. To establish pretext, a
plaintiff must produce evidence that the employer did more than get it wrong.
[H]e . . . must come forward with evidence that the employer didn’t really
believe its proffered reasons for action and thus may have been pursuing a
hidden discriminatory agenda. This is because Title VII licenses [courts] not
to act as a “super personnel department” to undo bad employment decisions;
instead, it charges [courts] to serve as a vital means for redressing
discriminatory ones.
Id. Plaintiff has not established that he is uniquely disadvantaged by any procedural defects,
if any, nor has he established an overwhelming disparity in qualifications between him and
Harder. Jaramillo, 427 F.3d at 1309. This leaves the basis of Plaintiff’s pretext argument
as the subjectivity of Burleson’s application of the matrix, which, even if accurate, is not
enough to prove pretext. While it is true that courts view subjective evaluations with
*
Specifically, Plaintiff cites to the deposition of Burleson as support for his assertion that
his score under the matrix was improperly calculated. However, in his testimony, Burleson’s
understanding of the matrix and the difference between workload experience and experience in this
job series is evidenced, as is Plaintiff’s misunderstanding. (Pl.’s Br., Dkt. No. 36 Ex. 4, at 44 (“Q.
And so if Mr. Ford testifies he spent more time than that, you’re saying he only spent two and-a-half
years in the boom shop? A. No, ma’am, that’s 2.5 points, and if you look at the workload
experience, 2.5 points per year. Q. So it would have been 15—so 15 years at two-and-a-half. So
these other people had all been in the boom shop— A. No, I still don’t think you understand me.
Q. Okay. Yeah, I probably don’t. A. He was temporarily promoted in the boom shop for one year.
That 2.5 reflects one year in the boom shop workload experience.”).) (See also id. Ex. 1, at 24 (“Q.
Just to make it clear, you [Plaintiff] think you should have gotten a ten in workload experience? A.
It should have been a ten. . . . Q. You agree with the “Experience in Job Series,” you agree with the
seven? A. Yeah. We both got seven’s (sic) in that. Q. Do you have any idea why there had been
two columns that say the same thing? A. I have no idea.”).)
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skepticism, “the existence of subjective criteria alone is not considered evidence of pretext.”
Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1120 (10th Cir. 2007); Plotke v. White, 405
F.3d 1092, 1106 (10th Cir. 2005). Construing all facts in favor of Plaintiff, he has neither
sufficiently established pretext nor disputed material issues of fact to survive summary
judgment. Accordingly, Defendant’s Motion for Summary Judgment as to Plaintiff’s failure
to promote claim is granted.
2. Retaliation
To succeed in a Title VII retaliation claim against an employer, a plaintiff must show
the following: “(1) the plaintiff engaged in protected opposition to discrimination; (2) the
plaintiff suffered an adverse employment action; and (3) there is a causal connection between
the protected activity and the adverse employment action.” Petersen v. Utah Dep’t of Corr.,
301 F.3d 1182, 1188 (10th Cir. 2002) (internal brackets and quotation marks omitted).
Here, Plaintiff filed formal charges of discrimination under Title VII and, therefore,
participated in a protected activity. Somoza v. Univ. of Denver, 513 F.3d 1206, 1213-14
(10th Cir. 2008). Plaintiff claims that in retaliation for previous filings, Bobby Burleson
failed to promote him to a position for which he applied and was qualified. Failure to
promote is an adverse employment action, so the pivotal issue is whether the two are
sufficiently connected for the former to have caused the latter.
Defendant argues that Plaintiff’s claim fails as a matter of law because the latest prior
EEOC filings occurred in 2003 and the alleged discriminator had no knowledge of the prior
filings. Plaintiff asserts that under the 2005 settlement of his 2003 EEO claim, Defendant
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agreed to promote him to the next available WG-11position, which Defendant failed to do.
The language of the agreement, however, requires no such advancement. While the
agreement does provide that someone will “accompany[] Christopher Ford to the Tinker AFB
personnel office to determine areas that can be improved to aid Mr. Ford in qualifying for
future supervisory positions,” it makes no promise to grant him such positions. (Def.’s Br.,
Dkt. No. 42 Ex. 7) (stating at the top that “[u]nless otherwise stated, the undersigned settle
all disputes existing between them”). Accordingly, the Court finds no basis for Plaintiff’s
assertion that Defendant breached an agreement to promote him or that such a breach,
without more, would satisfy Plaintiff’s burden of establishing a causal connection.
Besides Plaintiff’s assertion that Burleson knew of Plaintiff’s prior EEO charges,
Plaintiff has not shown how his failure to be promoted and these prior filings are connected.
Plaintiff filed four charges during the years 2000 to 2003. The last charge was filed in 2003
and settled in 2005. While Burleson had knowledge of the prior charge, he had no
involvement with the allegations or settlement. (Pl.’s Br., Dkt. No. 36 Ex. 4 at 14 (Burleson
stating that “[he] thought [he] had heard that [Plaintiff] had filed a previous EEO complaint”
but that he could not remember specifics regarding such complaint).)
Besides this
knowledge, Plaintiff points to no reason to connect the two events.
Plaintiff’s protected activity is remote enough in time from the alleged adverse
employment action that it fails by itself to establish a casual connection. Piercy v. Maketa,
480 F.3d 1192, 1198 (10th Cir. 2007) (“[I]f the only evidence of causation is a temporal
relationship, then the adverse action must occur closely following the protected activity. For
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example, an adverse employment action that happened more than three months after the
protected activity was not entitled to a presumption of causation.”). Therefore, Plaintiff has
failed to show a causal connection between his protected activity and his failure to be
promoted, and Defendant’s Motion for Summary Judgment regarding Plaintiff’s reprisal
claim must be granted. See Peterson, 301 F.3d at 1191 (affirming district court’s dismissal
after finding “the record . . . replete with general claims of retaliation but no specifics.”).
3. Hostile Work Environment Claim
“Although Title VII does not explicitly mention hostile work environment, a victim
of a racially hostile work environment may nevertheless bring a cause of action under Title
VII.” Ford v. West, 222 F.3d 767, 775 (10th Cir. 2000). To demonstrate a racially hostile
environment, “it must be shown that under the totality of the circumstances (1) the
harassment was pervasive or severe enough to alter the terms, conditions, or privilege of
employment, . . . and (2) the harassment was racial or stemmed from racial animus. General
harassment if not racial or sexual [in nature] is not actionable.” Bolden v. PRC Inc., 43 F.3d
545, 551 (10th Cir. 1994) (citing Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57, 67
(1986)).
In connection with a claim of hostile work environment, “[s]everity and pervasiveness
are evaluated according to the totality of the circumstances, considering such factors as ‘the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.’” Robinson v. Cavalry Portfolio Servs., L.L.C., 365 F. App’x
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104, 118 (10th Cir. 2010) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). To
demonstrate a hostile work environment, “[t]he plaintiff must show ‘more than a few isolated
incidents of racial enmity.’ . . . Instead of sporadic racial slurs, there must be a steady
barrage of opprobrious racial comments.” Bolden, 43 F.3d at 550 (internal citations omitted).
To survive the present motion, Plaintiff “must . . . produce evidence from which a
rational jury could infer that [he] was targeted for harassment because of [his] gender, race,
or national origin.” Sandoval v. City of Boulder, 388 F.3d 1312, 1327 (10th Cir. 2004).
Recovery on a Title VII hostile work environment claim includes acts taken outside the
statutory time period because “the entire hostile work environment encompasses a single
unlawful employment practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 11718 (2002); Boyer v. Cordant Techs., Inc., 316 F.3d 1137, 1140 (10th Cir. 2003).
Here, Plaintiff asserts thirteen incidents as the basis for his hostile work environment
claim: (1) from October 2008 to March 2009, co-workers walking through Plaintiff’s work
space, looking at him strangely, and bending over in front of him; (2) a co-worker elbowed
him in the back in February of 2009; (3) Nate Calhoun, a co-worker, called Plaintiff a
“nigger” and shoved his hand in Plaintiff’s face on February 18, 2009; (4) the next day,
Plaintiff’s first-level supervisor, Kevin Yates, took no action against Calhoun, who was
harassing Plaintiff; (5) on February 20, Plaintiff found Calhoun changing the station on his
radio; (6) on February 25, Plaintiff was forced to go into counseling for his confrontations
with Calhoun; (7) on March 5, Yates saw Calhoun walk through Plaintiff’s work area, but
failed to take action; (8) on four different occasions, Calhoun again walked through
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Plaintiff’s work area despite being told not to go near Plaintiff; (9) on March 11, Calhoun
followed Plaintiff and watched him for over an hour as Plaintiff took a computer test; (10) on
March 14, Calhoun followed Plaintiff and meanly stared at him for two hours; (11) on March
19, Defendant denied Plaintiff’s request for stress leave; (12) in August, Defendant told
Plaintiff he could no longer work weekends or overtime; and (13) in September, Plaintiff
requested medical retirement, which was denied.
While Plaintiff claims that he sufficiently established a pervasive and severe
environment, his testimony that all but two of the above instances had no impact on his
working conditions tends to undercut this conclusion.
Plaintiff’s later objection to
Defendant’s citation of the relevant portions of Plaintiff’s affidavit—where Plaintiff admits
that these incidents had no effect on his working conditions—is not enough to counter the
veracity of Plaintiff’s statements, nor is it sufficient to create a dispute regarding these issues.
Plaintiff did testify that the denial of his request for stress leave and elimination of his
overtime did affect his working conditions, but does not put forth any evidence, other than
his sentiment, that these actions were based on racial or discriminatory animus.
While the “‘mere utterance of an . . . epithet which engenders offensive feelings in a
[sic] employee’ . . . does not sufficiently affect the conditions of employment to implicate
Title VII,” Harris, 510 U.S. at 21, “‘the word “nigger” is pure anathema to AfricanAmericans.’” Tademy v. Union Pac. Corp., 520 F.3d 1149, 1162 (10th Cir. 2008) (quoting
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001)). Plaintiff’s confrontation
with Calhoun, arising from an argument about a vacuum during which both Plaintiff and
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Calhoun accuse the other of using this racial epithet, led both to receive counseling regarding
workplace disagreements and use of such language. This incident was the sole verbal
confrontation between the two and was isolated.
Plaintiff’s allegations that co-workers walked through his space, which Defendant
claims was communal, and bent over also is not sufficient to establish a pervasive and severe
environment. Plaintiff admitted that these employees could be bending over to pick
something up and that they may not have seen Plaintiff while doing it. Besides his belief that
such actions were too many to be coincidental and were in fact motivated by his co-worker’s
animus towards him—due to his race, mental health, or prior EEO filings—Plaintiff has not
asserted how such conduct is motivated by discriminatory or racial bias.
Additionally, Plaintiff points to no basis that Plaintiff’s requested, but denied,
overtime and stress leave was due to racial or discriminatory animus instead of the proffered
reason that the backlog that afforded the overtime was eliminated. (Def.’s Br., Dkt. No. 33,
at 26.) Defendant submitted evidence that the decision to deny Plaintiff’s medical retirement
did not involve the alleged discriminatory actors, which Plaintiff does not dispute. (Id. at
30.) Nor does Plaintiff provide any evidence that his superior, who had no knowledge of his
prior filings, placed him in a separate room due to animus. (Pl.’s Br., Dkt. No. 36, at 19-20.)
Finally, Plaintiff received counseling, as did the other participant, for engaging in a
workplace disagreement, which Plaintiff agrees occurred. (Def.’s Br., Dkt. No. 33 Ex. 5, at
6-7.) Plaintiff relies exclusively on his presumptions that all of the complained-of activity
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was based on either his race, his disability, or his prior filings, but cites no other facts as
support.
While the Court does not doubt the sincerity with which Ford claims his workplace
environment caused stress, anxiety, panic attacks, and the ancillary difficulties arising
therefrom, the Court cannot find that he has sufficiently shown that under the totality of the
circumstances the harassment was pervasive or severe enough to alter the terms, conditions,
or privilege of employment and was racial or stemmed from racial or discriminatory animus.
See Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010)
(“‘Unsupported conclusory allegations do not create a genuine issue of fact.’” (quoting L &
M Enters., Inc. v. BEI Sensors & Sys. Co., 231 F.3d 1284, 1287 (10th Cir. 2000))).
Accordingly, Defendant is entitled to summary judgment regarding Plaintiff’s hostile work
environment claim.
IV. CONCLUSION
Even when viewing the evidence in a light most favorable to Plaintiff, the Court
cannot find that Plaintiff has raised a genuine issue of material fact that Defendant’s actions
were motivated by unlawful discrimination or that the reasons proffered by Defendant for
these actions were pretextual. See Branson v. Price River Coal Co., 853 F.2d 768, 772 (10th
Cir. 1988) (“[P]laintiffs’ mere conjecture that their employer’s explanation is a pretext for
intentional discrimination is an insufficient basis for denial of summary judgment.”).
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Accordingly, Defendant’s Motion for Summary Judgment (Dkt. No. 33) is herein
GRANTED, and a judgment shall enter. All other pending motions are stricken as moot.
IT IS SO ORDERED this 27th day of July, 2011.
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